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2013 DAILYLAW 2616 (DEL)

Anoop Maheshwari v. Deepali Chandhoke

2013-05-17

V K Shali

body2013
1. This is a regular second appeal filed against the judgment dated 9.8.2012 passed by the learned ADJ as well as the against the order dated 18.2.13 passed by the learned ADJ reviewing the application of the appellant by virtue of which the first appellate Court had upheld the judgment and decree dated 2.2.12 passed by the learned Civil Judge in Suit No. 308/03/10 decreeing the suit for possession. 2. It may be pertinent here to mention that the respondent who happens to be a practising Advocate had filed a suit for possession in respect of a Flat No. 20B, OCS Apartment, Mayur Vihar, Phase-I, Delhi alleging that respondent No. 1 had entered into a lease deed dated 1.4.2005 with the appellant for three years on a monthly rent of Rs. 8000/- per month apart from electricity and water charges. It was also alleged that the rent was to be increased annually @ 500/- and the appellant had issued 36 post-dated cheques to the respondents towards the payment of monthly rent for the entire duration of the lease. It had been alleged that the cheques when presented on the dates, (when they were due for encashment), were dishonoured on account of insufficient funds and, accordingly, the respondent was constrained to lodge complaints under Section 138, NI Act on account of dishonour of cheques apart from initiating action for retrieving the possession. 3. At the time when the suit was filed, the appellant was in arrears of rent of approximately to the tune of Rs. 1,67,835/-. A notice was issued to him. 4. The appellant filed his written statement and admitted the fact of arrears of rate of rent. Relationship of landlord and tenant or the quantum of rent was also not disputed. 5. The respondent filed an application under Order 12 Rule 6, CPC to which reply was filed and after hearing arguments on the application, the trial Court passed a decree of possession holding that as there was an admission with regard to relationship of landlord and tenant and the rate of rent is more than Rs.3,500/-as well as the tenancy/lease between the parties had been determined in terms of Section 111 of the Transfer of Property Act accordingly, the respondent was entitled to a decree of possession. A detailed judgment was passed on 2.2.2012 on an application under Order 12 Rule 6, CPC. 6. A detailed judgment was passed on 2.2.2012 on an application under Order 12 Rule 6, CPC. 6. The appellant filed an appeal against the said judgment and decree which was also dismissed by the first appellate Court vide order dated 9.8.2012. Thereafter, the appellant filed a review application against the order dated 9.8.2012 which was also dismissed on 18.2.2013. 7. The appellant feeling dissatisfied chose to file the present regular second appeal which came up for hearing for the first time on 22.2.2013. On the said date, this Court was not inclined to issue notice on the regular second appeal, as no substantial question of law was formulated nor the same was arising from the present appeal, but as the respondent/landlord was present in pursuance to the Caveat having been filed, Mr. Nayar, learned Senior Counsel appearing for the respondent had made a statement that the appellant is in arrears of rent for the last 7 years and that the respondent is prepared to give up the arrears of recovery of rent if the appellant vacates the suit premises within a reasonable time. 8. After hearing the appellant as well as his Counsel, time was granted to the appellant till 30.4.2013 to vacate the suit premises. The date of 30.4.2013 was specifically granted to the appellant on the ground that his son was stated to be studying in 11th Standard. The appellant was directed to file an undertaking in this regard. The appellant also undertook that he shall not create any third party interest in the suit property and shall clear all the dues regarding electricity and water for the period for which he had been in occupation and on receipt of this undertaking, an acceptance was to be filed by the respondent. 9. The matter was directed to be listed in Court on 11.3.2013 and before the Registrar on 4.3.2013 for compliance with regard to the undertaking. After initial hiccups, the appellant filed an undertaking on 4.3.2013 stating that the same was being filed by him in pursuance to the order dated 22.2.2013 that he shall vacate the flat in question and hand over the peaceful and vacant possession to the respondent on or before 30.4.2013. 10. After initial hiccups, the appellant filed an undertaking on 4.3.2013 stating that the same was being filed by him in pursuance to the order dated 22.2.2013 that he shall vacate the flat in question and hand over the peaceful and vacant possession to the respondent on or before 30.4.2013. 10. The Registrar fixed the date for the purpose of recording the statement of the appellant as well as the respondent but the appellant failed to appear before the Registrar consequently, the Registrar was left with no other option but to post the matter before this Court again. 11. On 11.3.2013, the appellant was directed to file further undertaking that he shall clear the electricity dues which were stated to the tune of Rs. 7 lacs on account of allegations of fraudulent abstraction of electricity as submitted by the learned Counsel for the respondent. 12. On 20.3.2013, the appellant was present before the Registrar and requested for some more time to file an affidavit in terms of the order dated 11.3.2013. The matter was listed before this Court for directions on 11.4.2013, as the appellant had failed to appear after filing of an affidavit before the Registrar on couple of occasions. This Court was apprised by his Counsel that the appellant was not able to appear before the Court on 11.4.2013 on account of illness of his sister despite the learned Counsel having communicated him about the date of hearing. On the request of the Counsel for the appellant, the matter was adjourned to 26.4.2013 and again the appellant did not appear. 13. Under these circumstances, the matter was posted on 1.5.2013 to find out as to whether the appellant abides by his undertaking to vacate the suit premises and hand over the peaceful and vacant possession of the suit premises to the respondent. 14. On 1.5.2013, another opportunity was given to the appellant to comply with the orders of the Court. So far as vacation of the suit premises was concerned, the undertaking was given and the matter was listed on 13.5.13, on which date, it got adjourned to 17.5.2013 as the court did not hold sitting. 15. 14. On 1.5.2013, another opportunity was given to the appellant to comply with the orders of the Court. So far as vacation of the suit premises was concerned, the undertaking was given and the matter was listed on 13.5.13, on which date, it got adjourned to 17.5.2013 as the court did not hold sitting. 15. Today, it has been brought to the notice of the Court that the appellant has still not complied with the undertaking furnished by him to vacate the premises and it has also been brought to the notice of the Court that the appellant has been taken into custody in a case under Section 138 of Negotiable Instruments Act on account of having been declared as a proclaimed offender from the Court V.K. Garg, learned MM, Delhi. 16. The wife of the appellant is present in Court. She was directed to vacate the suit premises in terms of the undertaking having been furnished by the appellant, however, she sought further time to do the needful. 17. The learned Counsel for the respondent has expressed his unwillingness to show any sympathy for grant of further time to the appellant or to his family members on account of conduct of the appellant himself. 18. I have carefully considered the rival contentions. 19. I am prima facie of the view that the appellant having furnished undertaking and not abiding by the same has committed contempt and, therefore, notwithstanding the fact that presently he may be in custody, he has still to show cause as to why action for contempt may not be initiated against him for having violated his undertaking. Accordingly, the Registry shall issue notice to the appellant to show cause as to why the proceedings for contempt may not be initiated against him. 20. Normally, Court would have considered in giving time of one week or ten days to the appellant for vacating the suit premises as prayed by his wife, however, seeing the past conduct of the appellant, this Court is clearly dissuaded from granting any further time to such unscrupulous person who is dishonest and does not keep his word and has scant regard for law. The appellant is claiming himself to be a Chartered Accountant and thus educated while as his behaviour is that of an illiterate cantankerous person; he is in further arrears of rent for the past 7 years; he is alleged to be in arrears of payment of electricity and water charges which the learned Counsel for the respondent has stated to be to the tune of Rs. 7 lacs though the same is contested by the learned Counsel for the appellant on instructions from the wife of the appellant. It is further stated by the learned Counsel for the respondent that the electricity has been disconnected on accoiint of alleged fraudulent abstraction and the fact that the appellant had issued cheques for payment of rent to the respondent, but the substantial number of cheques were dishonoured on account of insufficient funds, which clearly shows the past conduct of the appellant is such that he has taken the Court for a ride. Such dishonest persons do not deserve any sympathy of the Court. Accordingly, the appeal of the appellant is dismissed. As the premises in question have not been vacate/1, the respondent is free to take such appropriate steps in accordance with law for retrieving possession with the help of the local police as may be permissible in law. 21. Post the matter on 16.7.2013 for service.